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Sen. Lee: Constitution Doesn’t Require Senate to Act on SCOTUS Nominee

Sen. Mike Lee (R-Utah) said there is no “shall language” in the Constitution that requires the Senate to hold hearings on President Obama’s Supreme Court nominee, Merrick Garland.

Lee, a member of the Senate Judiciary Committee, compared the situation to bills the House sends over to the Senate that are often not considered.

“When the House of Representatives passes legislation, as it routinely does, there is no affirmative ‘shall’ obligation on the part of the Senate for us to pass the legislation nor is there any affirmative ‘shall’ obligation for us to even consider that legislation. In fact, I believe in the last Congress, there were at least three or four hundred bills that were passed by the House of Representatives that were never even taken up in the Senate, never even given an opportunity for an up or down vote. This is the same kind of thing,” Lee said during a discussion held by the National Constitution Center on Capitol Hill.

“Now we can have a different discussion about politically or as a matter of policy whether it is a wise thing to do what we as Republicans are doing, but that is a separate question. It is my strong belief this is not a constitutional question because there is no affirmative constitutional obligation on the part of the Senate to act. The policy question and the political question must be separated from the Constitution,” he added.

Senators Chris Coons (D-Del.), also a member of the Judiciary Committee, said Lee made a “good” point about the confirmation process but argued that not holding hearings would set a bad precedent for the future.

“Senator Lee and I have a further conversation to have about separation of powers, the confirmation of a justice to the Supreme Court, U.S. v. Nixon and whether or not his analogy, a good one — the House and Senate send back hundreds of bills and, frankly, no harm no foul — there is no shall, there is no constitutional mandate that we take up their bills or they take up our bills,” Coons said. “But at what point does a refusal to engage or respond become so egregious to the functioning of the other branches that it raises the question that we’re literally impeding the constitutional scheme?”

Coons acknowledged that there are political and policy concerns but “for the long term” he remains concerned “deeply” that the Senate continues to move in the wrong direction with its confirmation power.

“Regardless of party, we seem to steadily head downwards in terms of our engagement, our purposefulness and the positive productivity we should be contributing towards constitutional deliberation in the course of confirmation hearings,” he said.

Coons and Lee were officially named the inaugural “Honorary Senatorial Scholars” by the National Constitution Center at the event.